Profit from Sale of Commercial Property Held for Six Years is Capital Gain, Not Business Income.

Issue

Whether the profit from the sale of a commercial building should be taxed as “Business Income” (as an adventure in nature of trade) or as “Long-Term Capital Gains,” especially when the assessee’s original intent was to earn rental income, but the property was sold after a prolonged period of vacancy.

Facts

The assessee purchased a vacant site and constructed a commercial building on it.
The assessee’s clear dominant intention was to hold the property as an investment and earn rental income from it.
However, the building remained vacant for a prolonged period, which put the assessee under financial pressure.
The assessee sold the property after holding it for six years.
In their tax return, the assessee declared the profit as Long-Term Capital Gains (after indexation) and claimed a consequential exemption under Section 54EC.
The Assessing Officer (AO) rejected this. The AO treated the assessee as a builder and the entire transaction as an “adventure in nature of trade,” thereby assessing the profit as Business Income.
The assessee had consistently disclosed the property as a “capital asset” in their income-tax and wealth-tax returns.

Decision

The High Court ruled decisively in favour of the assessee.
It held that the dominant intention at the time of purchase was to hold the property as an investment, not to trade it.
The sale after six years was a “forced sale” resulting from financial pressure due to the long vacancy, not a planned business venture.
Therefore, the property was correctly classified as a capital asset. The profit on its sale must be assessed under the head “Capital Gains.”
As a consequence, the assessee was also held to be entitled to claim the exemption under Section 54EC.

Key Takeaways

Intention and Holding Period are Key: The dominant intention at the time of purchase and the length of the holding period are the primary factors in distinguishing a capital asset from stock-in-trade. A long holding period (six years) strongly supports the “investment” claim.
A Single, Forced Sale is Not “Business”: An isolated sale of an asset, especially one forced by external circumstances (like financial pressure from vacancy), does not by itself constitute an “adventure in nature of trade.”
Consistent Disclosure Matters: The fact that the assessee consistently declared the property as a “capital asset” in all their tax filings over the years served as strong evidence supporting their investment intention.
Right to Exemption is Consequential: Once the income is correctly classified as Long-Term Capital Gain, the taxpayer is automatically entitled to claim all eligible exemptions associated with that head of income, such as Section 54EC.

IN THE ITAT BANGALORE BENCH ‘A’

Basavaraju Shivakumar Holavanahalli

Assistant Commissioner of Income-tax

Keshav Dubey, Judicial Member
and Waseem Ahmed, Accountant Member

IT Appeal No. 2216 (Bang) OF 2024
[Assessment year 2014-15]

OCTOBER 6, 2025

Smt. Pratibha, Adv. for the Appellant. Shivanand Kalakeri, CIT (DR) for the Respondent.

ORDER

Waseem Ahmed, Accountant Member. – This is an appeal filed by the assessee against the order passed by the NFAC, Delhi vide order dated 18/10/2024 in DIN No. ITBA/NFAC/S/250/2024-25/1069785049(1) for the assessment year 2014-15.

2. The assessee is aggrieved by the action of the Revenue in treating the sale of a property as business income instead of capital gains.

3. The assessee is an individual. He purchased a vacant site at Mysore Road, Bengaluru, on 03.09.2007 for ?2.80 crore through a registered sale deed. In 2008, the assessee obtained sanction from BBMP and constructed a commercial building (Lodge and Restaurant complex). The construction was financed by own funds and borrowed funds.

4. The assessee intended to let out the building for commercial use. Negotiations were held with Apodis Hotel & Resorts Ltd. in 2009. They even submitted a revised plan to suit their requirements. The deal could not go through. The assessee also issued advertisements in newspapers on 15.05.2010 inviting tenants. Despite efforts, no tenants were secured for almost six years.

5. Due to prolonged vacancy, financial pressure and commercial unviability, the assessee decided to sell the incomplete property. Advertisement for sale was published on 23.09.2012. Finally, an agreement to sell dated 28.10.2013 was executed in favour of 18 individuals, who later formed a partnership firm “Raj Towers.” The sale deed was registered on 12.12.2013 for ?10 crore. In the return of income, the assessee declared long-term capital gains after indexation and claimed exemption u/s 54EC of the Act.

6. However, the Assessing Officer held that the assessee was a builder and developer. He observed that the assessee constructed the building soon after purchase and later sold it to 18 parties. He treated the transaction as an adventure in the nature of trade. The AO assessed the profit as business income.

7. On appeal, the CIT(A) confirmed the order. He held that the immediate development and subsequent sale showed trading intention. He also held that Raj Towers was only a paper entity and the series of transactions clearly showed business motive.

8. Being aggrieved by the order of learned CIT-A, the assessee is in appeal before us.

9. The learned AR before us filed a paper book running from pages 1 to 352 and submitted that the assessee always treated the property as a capital asset. The property was disclosed in the income-tax returns from AY 2008-09 onwards as an investment. It was also declared in wealth-tax returns as evident from page 185 of the paper book

10. The assessee’s intention was never to sell the property for profit. His intention was to earn rental income. This is proved by the negotiations with Apodis Hotel, by the revised plan submitted by them, and by the advertisement for tenancy published in 2010.

11. The assessee waited nearly six years before selling. He sold only because he could not secure tenants and faced financial strain. A forced sale under compulsion cannot be equated with business motive. The AR relied on several case laws reproduced on 6 of the ld. CIT-A order. On the strength of these rulings, it was argued that the income should be taxed under “Capital Gains” and not as “Business Income.”

12. On the other hand, the learned DR supported the orders of the AO and ld. CIT(A). He argued that the assessee is engaged in real estate development. The quick construction after purchase and later sale clearly show trading intention of the assessee and therefore, the same should be brought to tax under head business and profession.

13. The ld. DR further argued that selling to 18 individuals and later showing it as a firm was only a device. The arrangement was a business venture.

14. We have considered rival submissions of both the parties and examined the materials available on record. The key issue is whether the property was held as a capital asset or as stock-in-trade. The answer depends on intention. Intention has to be gathered from conduct, treatment in accounts, and surrounding circumstances.

14.1 The assessee purchased the land in September 2007. He immediately constructed a building and tried to let it out. Negotiations with Apodis Hotel, advertisements for tenancy, and waiting for six years show that the dominant intention was to hold it as investment for rental income.

14.2 The property was disclosed as capital asset in income-tax and wealth-tax returns. This conduct is consistent and supports the assessee. If the property was stock-in-trade, it would not have been declared in wealth-tax returns.

14.3 The sale was after six years of holding, not immediately after purchase. The assessee sold due to financial pressure and long vacancy. This was a forced sale, not a planned business venture. We therefore hold that the property in question was a capital asset. The profit on sale has to be assessed under the head “Capital Gains.” The assessee is also entitled to exemption under section 54EC of the Act. Accordingly, we find no justification in the orders of AO and CIT(A). They have wrongly treated the transaction as business income. The assessee’s stand of capital gains is correct. The AO is directed to assess the income under the head “Capital Gains” as returned by the assessee. Accordingly, the ground of appeal of the assessee is allowed.

15. In the result, the appeal of the assessee is allowed.